April 30, 2014

Steve A. Knizner, Acting Director

Toxics Release Inventory Program Division

U.S. Environmental Protection Agency 

William Jefferson Clinton Building 

1200 Pennsylvania Avenue, N.W. 

Mail Code: 2844T 

Washington, DC 20460

SUBJECT: Response to “Petition to Add the Oil and Gas Extraction Industry, Standard 

Industrial Classification Code 13, to the List of Facilities Required to Report 

under the Toxics Release Inventory” (Oct. 24, 2012) and Supplemental 

Submission (Jan. 30, 2014), Docket ID No. EPA-HQ-TRI-2013-0281.

Dear Acting Director Knizner:

The American Petroleum Institute (“API”) appreciates this opportunity to respond to the October 

24, 2012 petition1filed by the Environmental Integrity Project and sixteen other organizations 

(collectively, “EIP”) and EIP’s January 30, 2014 supplement to that petition.2 In its petition, EIP 

asks the Environmental Protection Agency (“EPA”) to initiate a rulemaking to add Standard 

Industrial Classification Code 13 (“SIC Code 13”) and various North American Industry 

Classification System (“NAICS”) codes to the list of industries subject to reporting under the 

Toxics Release Inventory (“TRI”) of the Environmental Planning and Community Right-toKnow Act (“EPCRA”). These industry codes encompass, generally, the oil and gas exploration 

and production industry (“E&P industry”).

API is a national trade association representing over 600 member companies involved in all 

aspects of the oil and natural gas industry. API’s members include producers, refiners, suppliers, 

pipeline operators, and marine transporters, as well as service and supply companies that support 

all segments of the industry. API and its members are dedicated to protecting the environment 

while economically developing and supplying energy resources for consumers. API members 

carry out operations for safe and environmentally responsible exploration and production of 

natural gas, crude oil, and associated liquids. 

 

1 Environmental Integrity Project, “Petition to Add the Oil and Gas Extraction Industry, Standard Industrial 

Classification Code 13, to the List of Facilities Required to Report under the Toxics Release Inventory” (Oct. 24, 

2012) (“EIP Petition”).

2 EIP, “Re: Petition to Add the Oil and Gas Extraction Industry, Standard Industrial Classification Code 13, to the 

List of Facilities Required to Report under the Toxics Release Inventory” (Jan. 30, 2014).

Erik Milito

Group Director

Upstream and Industry Operations

1220 L Street, NW

Washington, DC 20005-4070

USA

Telephone 202-682-8273

Fax 202-682-8426

Email militoe@api.org

www.api.org
Action Director Knizner

April 30, 2014 

Page Two

For the reasons discussed below, API strongly disagrees that EPA should initiate a rulemaking to 

add the E&P industry to the TRI program. This submission is not an exhaustive presentation of 

API’s arguments against EIP’s petition and supplement but is instead intended to address certain 

key areas in which API believes more information would assist EPA in making its decision.

I. EPA’s 1996 Decision Not to Add E&P to TRI Reporting

In 1996, EPA decided not to include the E&P industry in the list of industries required to report 

information under the TRI program.3 At that time, EPA explained that it was not adding the 

E&P industry to the TRI program because the industry is “unique” and “neither the employee 

nor the chemical thresholds [under the TRI program] are likely to be met.”4

There has not been such a change in the E&P industry that EPA should deviate from its 1996 

decision. In both of its submissions, EIP contends, in effect, that EPA should sweep the entire 

E&P industry into the TRI program based on a small portion of the industry’s facilities. EIP’s 

January 2014 submission focuses on a particularly limited subset of those facilities. As 

explained below, a more complete view of the E&P industry supports the same conclusion that 

EPA reached when it previously considered the issue.

II. A Rulemaking to Add E&P to TRI Reporting is Not Warranted

EPCRA Section 313(b)(1)(B)5establishes the standard that EPA must follow when it adds or 

removes industries to or from the TRI program, stating that the Administrator may add SIC 

Codes to the TRI program “only to the extent necessary” and where the addition would be 

“relevant to the TRI program.” For several reasons, the addition of the E&P industry to the TRI 

program is neither necessary nor relevant to the program.

A. EIP Improperly Attempts to Expand the Statutory Definition of Facility

The EPCRA definition of “facility” includes only “buildings, equipment, structures, and other 

stationary items” that are “located on a single site or on contiguous or adjacent sites.”6 EIP’s 

proposed expansion of that definition in its original petition directly contradicts the clear 

meaning of the statute. EIP improperly attempts to aggregate a vast number of non-contiguous 

and non-adjacent sites in its attempt to create “facilities” that, only if aggregated, might meet the 

TRI reporting thresholds. 

EIP’s legal argument for expanding the statutory definition of facility is unsupported. Sierra 

Club v. Tyson Foods, which EIP cites in support of its argument, addressed chicken production

 

3

61 Fed. Reg. 33,588, 33,592 (June 27, 1996).

4

Id.

5

42 U.S.C. § 11023(b)(1)(B).

6

Id. § 11049(4) (emphasis added).
Acting Director Knizner

April 30, 2014 

Page Three

facilities that were within 50 to 60 feet of each other on a single farm.7 On the contrary, most 

E&P sites are scattered across parcels owned by many different landowners, separated by

unrelated parcels. As both the Marcellus Shale Coalition (“MSC”) and the Washington Legal 

Foundation noted in their comments on EIP’s original petition, Summit Petroleum Corp. v. EPA

provides a better view of when multiple facilities may be viewed as one, concluding that the

plain meaning of the term “adjacent” refers to a close physical and geographic relationship.8 

Such a close relationship is similarly required under EPCRA.

EIP’s attempt to analogize to EPA’s greenhouse gas reporting (“GHG”) rules is also inapt. For 

GHG reporting, EPA indeed considers E&P facilities at the basin level, as opposed to the well 

level.9 As MSC explained in its comments, however, EPA was not constrained by EPCRA’s 

definition of “facility” in promulgating the GHG reporting rules.10 Furthermore, the basin 

approach is more consistent with the national policy concerns motivating the GHG reporting 

rules, as opposed to TRI reporting, which concerns local communities.11 Simply put, basin-level 

reporting for GHGs has no bearing on the aggregation of facilities under the TRI program.

API further supports MSC’s criticism of EIP’s factual analysis of the proximity of wells.12 For 

example, even accepting EIP’s factual assertion that there were 137 wells within a 3.5-mile 

radius at Dimock, Pennsylvania, in December 2011, EIP’s analysis fails to acknowledge that a 

3.5-mile radius correlates to a 38.5 square mile area.13 Such an expansive area means that, on 

average, each well would be separated by over a quarter mile. And, as EIP acknowledges, “a 

large number of these wells are co-located in clusters of two to five wells per well site,”14 which 

means that the average distance between well sites would be even greater. These well sites, like 

most E&P facilities, are not contiguous or adjacent and therefore cannot be considered a single 

facility under EPCRA’s definition of “facility.”

B. Relatively Few E&P Facilities May Have Sufficient Full-Time Employees to be Subject 

to the TRI Program

 

7

Sierra Club v. Tyson Foods, 299 F. Supp. 2d 693, 699-700 (W.D. Ky. 2003).

8

Summit Petroleum Corp. v. EPA, 690 F.3d 733, 741-44 (6th Cir. 2012); see also Washington Legal Foundation, 

“Re: Petition to Add the Oil and Gas Extraction Industry, Standard Industrial Code 13, to the List of Facilities 

Required to Report under the Toxics Release Inventory” at 1-2 (Jan. 8, 2013); Marcellus Shale Coalition, “Response 

to Petition to Add the Oil and Gas Extraction Industry, Standard Industrial Code 13, to the List of Facilities 

Required to Report under the Toxics Release Inventory” at 4 (Dec. 18, 2012) (“MSC Comments”). 

9

40 CFR § 98.238.

10 MSC Comments at 5-6.

11 Id.

12 Id. at 5.

13 Id.

14 EIP Petition at 68.
Acting Director Knizner

April 30, 2014 

Page Four

In its 1996 comments, API questioned whether E&P sites meet the full-time employee (“FTE”) 

threshold for TRI reporting.15 This question remains viable today. As in 1996, many E&P sites 

are unlikely to meet the FTE requirement at any time. For other sites, much of the laborintensive activity is focused on a limited portion of the site’s existence. Once drilling and 

completions operations conclude at a well, fewer than 10 employees may access the site over the 

course of any given year during the many years that a well produces hydrocarbons.

In its original petition, EIP asks EPA to sweep the entire E&P industry into the TRI program 

based on facilities that may only meet the FTE requirement during a fraction of their operations, 

if ever. Its supplement to the petition does the same with respect to facilities that make up a 

small percentage of all E&P facilities. Adding the entire E&P industry to the TRI program is 

unwarranted considering that it would create an administrative burden on both the regulated 

industry and EPA while providing only a negligible benefit.16

C. EIP’s Data Does Not Support its Conclusions Regarding Use of Chemicals at Facilities

EIP argues that data from existing reporting supports its conclusion that E&P facilities use 

sufficient listed chemicals to meet the thresholds set by the TRI program. API reiterates MSC’s 

argument that EIP misapplied the TRI thresholds in its original petition.17 EPCRA Section 

313(f)18 sets thresholds not on an aggregate basis but instead on a per-chemical or per-chemical 

category basis. For example, to satisfy the “otherwise use” threshold for TRI reporting, a facility 

must use 10,000 pounds of any one listed chemical or chemical category, not a total of 10,000 

pounds of all listed chemicals. EIP’s original petition fails to show that any given facility has 

met any of the TRI chemical thresholds.

In its supplemental petition, EIP points to existing reporting data for its argument that certain 

larger E&P facilities may meet the TRI thresholds on a per-chemical basis. As noted above, 

these facilities make up a small percentage of the facilities within the E&P industry. API has not 

yet conducted an analysis to verify the accuracy of the data that EIP has presented in the 

supplement to its petition. Even assuming that the data is accurate, however, it does not support 

adding the entire E&P industry to the TRI program. The fact that a small percentage of facilities 

within an industry may meet the TRI chemical threshold does not justify adding the industry to 

the TRI program. Again, such an addition would produce limited benefits while imposing an 

administrative burden on both the regulated industry and EPA.

 

15 API, “Re: Proposed Rule to Expand SIC Codes Reportable under Section 313 of the Emergency Planning and 

Community Right-to-Know Act” at 4-6 (Sept. 19, 1996) (“1996 API Comments”).

16 In particular, as API explained in 1996, tracking contractors’ hours to determine whether a particular well site 

meets the TRI program’s full-time employee threshold would require E&P operators to create entirely new systems 

for a limited benefit. 1996 API Comments at 4-6.

17 MSC Comments at 7.

18 42 U.S.C. § 11023(f).
Acting Director Knizner

April 30, 2014 

Page Five

D. Addition of the E&P Industry Would Not Be Relevant to the Purposes of the TRI 

Program

Pursuant to EPCRA Section 313(b)(1)(B),19 EPA may only add industries to the TRI program if 

the addition “is relevant to the purposes of [the TRI program].” Congress established EPCRA, 

including the TRI program, in response to serious chemical releases at major industrial facilities,

such as the 1984 release from a chemical plant in Bhopal, India, which killed thousands of 

people, and a release from a similar plant in West Virginia the following year.20

Adding the E&P industry to the TRI program would have limited relevance to the program’s 

purposes. It would produce limited relevant information because, as discussed above, only a 

small percentage of E&P facilities are likely to meet the TRI reporting thresholds. Furthermore, 

E&P facilities are generally located away from human populations, in uninhabited rural areas, 

offshore platforms, and remote installations. Including those facilities in the TRI program would 

not be relevant to the program’s purposes because it would not provide information to 

communities as the TRI program intended. Finally, E&P facilities are not the type of major 

industrial facilities, like the facilities in Bhopal and West Virginia, that were at issue when 

Congress established the TRI program. 

In addition, at least two developments since EIP filed its original petition significantly undercut 

its policy arguments for adding the E&P industry to the TRI program. First, EPA has increased 

its regulation of air emissions for E&P facilities. Those rules are expected to reduce emissions 

from E&P facilities;21 to the extent that EIP’s analysis relies on emissions reports as an 

indication that E&P facilities emit listed chemicals in such quantities that TRI reporting is 

relevant to the purposes of the TRI program, those numbers are not likely to reflect emissions in 

the coming years. Second, EIP’s petition relies significantly on assertions about potential 

groundwater contamination from hydraulic fracturing.22 Subsequently, numerous officials from 

EPA, BLM, DOI, and other federal agencies have stated, including in testimony to Congress, 

that there have been no confirmed cases of hydraulic fracturing impacting groundwater.

23

III. Conclusion

 

19 Id. § 11023(b)(1)(B).

20 EPA, Learn about the Toxics Release Inventory, http://www2.epa.gov/toxics-release-inventory-tri-program/learnabout-toxics-release-inventory (last visited April 18, 2014).

21 See, e.g., EPA, Oil and Natural Gas Pollution Standards, http://www.epa.gov/airquality/oilandgas/ (stating that 

EPA expects its new regulations “to reduce harmful air pollution from the oil and natural gas industry”) (last visited 

April 18, 2014).

22 EIP Petition at 41-50.

23 See API, “Oil and Gas; Hydraulic Fracturing on Federal and Indian Lands, 78 Fed. Reg. 31,635 (May 24, 2013). 

RIN 1004-AE26” at 5-6 (Aug. 23, 2013) (listing statements by EPA Administrator Gina McCarthy, among others).
Acting Director Knizner

April 30, 2014 

Page Six

For the reasons explained above, adding the E&P industry to the TRI program would not be 

appropriate. Imposing the TRI reporting requirements on this industry would not support the 

purpose of the TRI program, would present limited potential benefits, and would impose burdens 

on the regulated community and EPA.24 Accordingly, API strongly disagrees that EPA should 

initiate a rulemaking to add the E&P industry to the TRI program.

Should you have any questions regarding API’s comments, please do not hesitate to contact me. 

We would be happy to meet with your staff and you to further discuss our positions, if that 

would be helpful as you evaluate this important issue. 

Regards,

Erik Milito

Group Director

Upstream and Industry Operations

cc: Kevin Minoli, Acting Principal Deputy General Counsel, U.S. Environmental Protection

Agency

 

24 In 1996, API estimated that the costs for the E&P industry to comply with TRI reporting would be $200 million 

for the first year and $100 million for each subsequent year. 1996 API Comments at 10. The Department of 

Energy’s estimate at that time was significantly higher, in the billions of dollars. Id. As the industry has grown 

since that time, the compliance costs today would likely be even higher.